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Text of Ruling Blocking Obama's 6 Month Deepwater Drilling Moratorium in The Gulf
Text of Ruling Blocking Obama's 6 Month Deepwater Drilling Moratorium in The Gulf
Text of Ruling Blocking Obama's 6 Month Deepwater Drilling Moratorium in The Gulf
Background
1
Hornbeck Offshore Services owns and operates a fleet of
Jones-Act compliant vessels that support deepwater and ultra
deepwater exploration in the Gulf of Mexico. The Bollinger Entities
own and operate shipyards for the construction and repair of
vessels with a significant part of their business (50% in 2009)
involving vessels used to support deepwater exploration and
production in the Gulf. The Bee Mar Deepwater Vessel Companies own
and operate vessels that support Gulf of Mexico deepwater
exploration and production activities. The Chouest Shore Side
Companies perform various support services necessary for Gulf
deepwater exploration and production. The Chouest Vessel Companies
own and operate vessels that support deepwater exploration and
production in the Gulf. The Chouest Shipyard Companies construct
vessels intended for Gulf of Mexico deepwater operations. Over
10,000 employees in a variety of trades are employed.
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May 28, 2010 by the Department of the Interior and the Minerals
Management Service.
2
The all-too-familiar tragic facts include the senseless
deaths of eleven crew members, the horrible losses of their
families and loved ones, many injured workers, a broken pipe on the
sea floor that continues to spew endless gushes of crude oil into
the Gulf, and oil muck that has spread across thousands of square
miles and persists in damaging sensitive coastlines, wildlife, and
the intertwined local economies. As a result, nearly one-third of
the Gulf of Mexico has been closed to commercial and recreational
fishing.
2
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not including relief wells currently being drilled by BP, that are
the National Academy experts and three of the other experts have
publicly stated that they “do not agree with the six month blanket
factor that might cause some apprehension about the probity of the
3
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measures.
the pursuit of deeper oil and gas deposits in deeper water, the
4
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directs that:
are used in shallow waters up to 500 feet, and floating rigs, which
control methods.
3
The extent of this Court’s scope of review is discussed
in more detail in Part II.B.
5
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four percent of active leases are in deepwater, over 1000 feet. The
rigs.
Department, the MMS, and the Director of the MMS. Two days later,
for June 21, 2010. On June 18, 2010, the Florida Wildlife
6
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I. OCSLA
A.
oil and gas leasing and declares as national policy that “the outer
4
The Court wishes to thank all parties and counsel for
their cooperation and assistance in dealing with the expedited
schedule.
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regulations
§250.172(c).
B.
“prior to sixty days after the plaintiff has given notice of the
8
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Supp. 2d 150, 156 (D.C. Cir. 2001) (holding that the plaintiffs’
rates because this order did not mean the information would
156; see Hallstrom v. Tillamook County, 493 U.S. 20, 25, 33 (1989)
that where (as has been established here) the plaintiff’s legal
9
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A.
court. 5 U.S.C. §704; see id. §702 (“A person suffering a legal
law.’” Bennett v. Spear, 520 U.S. 154, 174 (1997). In reviewing the
the term “violation” in the Act’s citizen suit provision could not
ESA.” Id. The ESA provision permits suits “to enjoin any person .
5
The APA does not provide an implied grant of subject
matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 107 (1977).
However, the plaintiffs’ claims of injury caused by the defendants’
violation of OCSLA are subject to this Court’s federal question
jurisdiction. See 28 U.S.C. §1331.
10
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Circuit held that the APA, not the citizen suit provision of
F.3d 1032, 1034 (10th Cir. 1999). The Fifth Circuit has similarly
written that the OCSLA citizen suit provision should not be used to
to judicial review under the APA.” OXY USA, Inc. v. Babbitt, 122
F.3d 251, 258 (5th Cir. 1997); but see Duke Energy, 150 F. Supp. 2d
B.
The APA cautions that an agency action may only be set aside
(1971). The reviewing court must decide whether the agency acted
within the scope of its authority, “whether the decision was based
see Motor Vehicle Manf. Ass’n of the U.S. v. State Farm Mutual
6
In this case, it seems the result would be the same,
whether the APA applies or OCSLA’s citizen suit provisions.
11
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Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). While this Court’s
review is a narrow one.” Overton Park, 401 U.S. at 416; see Delta
Found., Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002).
the facts found and the choice made.’” State Farm, 463 U.S. at 43
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)).
Farm, the Supreme Court held the agency’s decision was arbitrary
12
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and capricious under the APA makes its decision on the basis of the
“whole record.” 5 U.S.C. §706; see Dep’t of Banking & Consumer Fin.
of Miss. v. Clarke, 809 F.2d 266, 271 (5th Cir. 1987). This record
reviewing court.” AT&T Info. Sys., Inc. v. Gen. Servs. Admin., 810
F.2d 1233, 1236 (D.C. Cir. 1987). Indeed, because the Court’s
United States v. Garner, 767 F.2d 104, 117 (5th Cir. 1985). Those
Water Ass’n v. City of Starkville, Miss., 577 F.3d 250, 253 (5th
Cir. 2009) (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp.,
328 F.3d 192, 196 (5th Cir. 2003)); see also PCI Transport., Inc.
v. Ft. Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005). The
13
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Roy, 77 F.2d 992, 997 (5th Cir. 1985); see Wis. Gas Co. v.
F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (“[Irreparable] injury
878 F.2d 806, 810 n.1 (5th Cir. 1989) (quoting Miss. Power & Light
Co. v. United Gas Pipe Line Co., 760 F.2d 618, 630 n.12 (5th Cir.
1985)).
14
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IV.
A. Jurisdiction
The plaintiffs focus on the APA as providing the basis for the
provided by the APA. The Court agrees that the APA certainly
applies here.
under OCSLA. Indeed, the issue does not seem to be whether the
7
In the alternative, the plaintiffs insist that the
“notification” requirement of §1349(a)(3) has been met in this
case. They point out that no particular type of notice is specified
in the statute and that the defendants in this case were on notice
of the dispute over the validity of the moratorium because direct
appeals on behalf of all Louisiana citizens, including the
plaintiffs, were made to the President and the Secretary in advance
of the filing of this lawsuit in a June 2, 2010 letter by Governor
Jindal and meetings between Louisiana’s senators and the
Administration. Plaintiffs underscore §1349(a)(3)’s requirement
that the defendants’ action “immediately affects” their legal
interests has also been met. The Court agrees. The moratorium is
already in effect and has already caused the cancellation and
threatened cancellation of some of the plaintiffs’ contracts.
Further effects are imminent because of the far-reaching scope of
the edict.
15
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enforcement). Rather, as the Tenth Circuit has held, the APA, and
1034; see Bennett, 520 U.S. at 174. The D.C. Circuit’s seemingly
irrelevant.8
the Gulf of Mexico and in the Pacific for six months. As declared
8
The Court adds that it seems the defendants had
notification of the “violation” (if it can be construed as such)
before the plaintiffs filed suit, and that the plaintiffs have
suffered an immediate effect to their legal interests in the form
of business relationships that have already been lost. Thus
trumping the “under oath” requirement.
16
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resources, stretched thin by the oil spill, could not cope with
While the Report notes the increase in deepwater drilling over the
past ten years and the increased safety risk associated with
9
The Report notes that the Deepwater Horizon disaster “is
commanding the Department of Interior’s resources.” A disturbing
admission by this Administration.
17
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“less than 1000 feet.” But while there is no mention of the 500
includes more than the Report, the Notice to Lessees, and the
example, one study showed that at 3000psi, the shear rams on three
of the six tested rigs failed to shear their samples; in the follow
up study, various ram models were tested on 214 pipe samples and
18
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these studies support a finding that shear equipment does not work
equipment parts are flawed, is it rational to say all are? Are all
airplanes a danger because one was? All oil tankers like Exxon
Valdez? All trains? All mines? That sort of thinking seems heavy-
and refuses to take into measure the safety records of those others
10
If the MMS and the Department truly were incompetent
and corrupt, as the intervenors insist, the Court fails to see how
this conclusion supports the government’s position. Indeed, while
the government makes light of the fact that several of the experts
disagree with the recommendations in the Report by noting that they
do not disagree with the findings, of greater concern is the
misleading text in the Executive Summary that seems to assert that
all the experts agree with the Secretary’s recommendation. The
government’s hair-splitting explanation abuses reason, common
sense, and the text at issue.
11
Most of the currently permitted rigs passed MMS
inspection after the Deepwater Horizon exploded. According to the
Report, since 1969, before Deepwater Horizon, only some three
blowouts have occurred . . . all in other parts of the world, not
19
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until they reached compliance with the new federal regulations said
substitute its judgment for that of the agency, but the agency must
manner.” State Farm, 463 U.S. at 48. It has not done so.12
the Gulf.
12
Of interest to the Court is the Report’s conflicting
observation that while “the rate of blowouts per well has not
increased . . . the experience of the BP Oil Spill illustrates the
significant challenges in deepwater drilling.”
20
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assume that because one rig failed and although no one yet fully
knows why, all companies and rigs drilling new wells over 500 feet
On the record now before the Court, the defendants have failed
C. Irreparable Harm
before more business and jobs and livelihoods will be lost. The
follow that this will somehow reduce the convincing harm suffered.
irreparable harm, “both harm to the parties and to the public may
21
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Machinists, 874 F.3d 901, 910 (2nd Cir. 1989)). The effect on
sites around the world will clearly ripple throughout the economy
in this region.
could outweigh the impact on the plaintiffs and the public, here,
the Court has found the plaintiffs would likely succeed in showing
plaintiffs, the local economy, the Gulf region, and the critical
country.
____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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